America's Catholic bishops and faithful
Catholic laity do not stand alone -- the Evangelicals by and large
stand now at our side as comrades in arms-in responding with a polite
but uncompromising, "No, we cannot!" to President Obama's dictate that
every Catholic hospital, social agency and institution of higher
learning in the U.S.A. must subsidize, even if only indirectly (through insurance
agencies acting as "the middle man") a course of action that the Church
has declared to be seriously disordered and thus mortally sinful. (Mr.
Obama's revised decree, a fall-back position taken after a firestorm of
public opposition to his original
demand that such activity be subsidized directly, takes no account of the
fact that many Catholic institutions self-insure,
while even those that do not will be subsidizing evil all the same
through payment of their insurance premiums). New challenges to Mr.
Obama's dictate are coming now from at least two other sources: from
(1) businesses owned by Catholic entrepreneurs who take their faith
seriously and thus refuse, taking their stand on the First Amendment
with its guarantee of religious freedom, to obey a government mandate
to provide to their employees what these entrepreneurs' consciences
correctly discern as evil; and (2) from those of any or no religion who oppose on secular grounds a president's
claim to have the right to impose upon a private business the
obligation to provide a free service, in the absence of pertinent Congressional legislation.

Focusing on these two newly opened fronts of principled opposition to
the Obama directive, may I share with you two statements: one a lucid
exposition of the secular case for opposition, offered by Michael
Stokes Paulsen, distinguished university chair and professor of law at
our own Twin Cities' University of St. Thomas; the other, an account of
a lawsuit filed by Hercules Industries of Denver, Colorado, appealing
to the First Amendment.

First off, the report, reprinted from catholicnewsagency.com
for May 1, 2012, on the Hercules Industries lawsuit.

A self-insured Catholic-owned
business has filed a lawsuit that could potentially stop the Obama
administration's contraception and abortion-causing drug mandate within
the next three months.

On April 30, Hercules Industries
- a Colorado- based manufacturer of heating, ventilation, and air
conditioning units - requested a
court order to block implementation of the mandate. Hercules is
seeking relief from the rule before its self-insurance plan renews
later this year.

Alliance Defense Fund Legal
Council Matt Bowman said the mandate, which also forces businesses to
provide sterilization and contraception, "unconstitutionally coerces
the leadership of Hercules Industries to violate their religious beliefs and
consciences under the threat of heavy fines and penalties."

"Every American should know that a
government with the power to do this to anyone can do this - and worse
- to everyone," Bowman said in an April 30 statement, announcing
the manufacturer's lawsuit against the administration.

"The government shouldn't punish
people of faith for making decisions in accordance with their faith,"
commented Bowman. "That is simply not acceptable in America."

Hercules is owned by William Newland, Paul Newland, James Newland, and
Christine Ketterhagen, all of whom - along with Vice President Andrew
Newland identify themselves as practicing Catholics.

The Alliance Defense Fund said their
lawsuit, Newland v. Sebelius, came from their desire "to run the company ... in a
manner that reflects their sincerely held religious beliefs,
including their belief that God requires respect for the sanctity of
human life."

Two private Christian schools,
Geneva College and Louisiana College, have also joined with the
Alliance Defense Fund in lawsuits against the contraception mandate.

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In The Weekly Standard for April 30,
2012 University of St. Thomas Law Professor Michael Stokes Paulsen
offered a lucid commentary on the Supreme Court precedent (Youngstown Sheet and Tube vs. Sawyer,
1952) that provides excellent grounds for declaring the Obama ukase
unconstitutional. Here is Professor Paulsen's statement.

Sixty years ago, on April 8,
1952, President Harry Truman directed his secretary of commerce,
Charles Sawyer, to seize and take over operation of the nation's steel
companies, in order to give steelworkers a wage increase and to
avert a strike threatening steel production during the Korean War. Truman's action led, in short order, to one
of the most famous and important of all modern Supreme Court decisions
- Youngstown Sheet & Tube Co. v.
Sawyer, the "steel seizure case." The decision dominated
the nation's headlines in the spring of 1952, just as the Obamacare
case has gripped the nation's attention this spring. Indeed, the two cases have more than that in
common.

Youngstown is the landmark case
that invalidated Truman's action. The Court held, in sweeping and
categorical terms, that THE PRESIDENT MAY NOT RULE BY DECREE,
conscripting private industry to carry out his commands. The chief
executive MAY ONLY EXECUTE LAWS PASSED BY CONGRESS, according to THEIR
terms. He may not make up laws of his own and then enforce them.

In February, President Obama
announced his intention to order private insurance companies to provide
contraception and abortion drug coverage FREE, as his way of
"accommodating" religious institutions' conscientious objections to
being forced to provide their employees coverage of those items under
Obamacare. Like Truman six decades
ago, Obama has proposed in effect to seize a national industry and tell
it what to do, WITHOUT any warrant in enacted law. Like Truman's steel
seizure, Obama's insurance seizure is flat UNCONSTITUTIONAL - as
unconstitutional as anything any president has attempted to do - and Obama does not even have Truman's
excuse of a national security crisis.

Rewind to the spring of 1952: An unpopular president, conducting an
unpopular, stalemated war he was not trying to win, was confronted with
a political problem in a presidential election year - a looming steelworkers' strike that could
shut down the nation's steel production for months. The steel industry
was under wartime price controls and could not meet labor's demands
without raising steel prices. The government's Wage
Stabilization Board recommended a wage increase for labor, but the Office of Price Stabilization
denied the companies' request for a price increase. Neither labor nor
management budged. A strike was imminent.

Truman's solution was to issue an executive order directing Secretary
Sawyer TO TAKE OVER THE NATION'S STEEL MILLS. Steel officials kept
their positions, but were ordered TO IMPLEMENT POLICIES PRESCRIBED BY
THE SECRETARY, notably the wage increase, to please ...
organized labor, in an election year.

Steel production was important to the war effort. But Truman's brazen seizure of private
businesses to be run by government decree was wholly unauthorized by
law. Indeed, Congress had considered and rejected the idea of
such direct government
intervention in labor disputes. What
Congress had authorized instead, in the Taft-Hartley Act of 1947, was
for the president to order a "cooling off" period of up to 80 days during
which neither labor nor management could take action against the other.
But steel unions were
ready to strike if management did not accede to their demands and did not want to cool their heels.
Truman did not want to alienate labor, so he took over management.

The owners of the steel mills
promptly sued, and the case raced to the Supreme Court on an
extraordinary fast track. The Court ruled, 6-3, that Truman's actions
were unconstitutional. The president is not a lawmaker and cannot rule
BY DECREE. Even in wartime - even in the name of emergency - the president cannot command private
industry except to the extent authorized by specific LEGISLATION.
(The three dissenters thought that wartime emergency, supported by a
generous reading of other statutes passed by Congress, justified
Truman's action, at least as a temporary measure.) Youngstown
is now regarded as a landmark decision on the limits of presidential
power.

Fast forward 60 years to
a near clone of Truman's steel seizure: A different president, battling
unpopularity and desperately desiring to please a political
constituency in an election year, miscalculates badly. His cabinet secretary at first orders that
religious charities, hospitals, ministries, and colleges (essentially
all religious organizations except "houses of worship") provide
abortion pills, sterilization, and contraception to their employees or
students in their health care plans, or pay a fine - regardless
of whether the religious group objects to providing such services as a
matter of religious faith. The secretary's order produces a firestorm
of fury as a grotesque, unconstitutional interference with religious liberty.

It is then that the president, Barack
Obama, seizes on the Truman-like "solution" of simply ordering private
companies - insurance companies this time - to provide contraception,
sterilization, and abortion drugs, and to provide them free, to workers
whose employers object to providing them. In essence, HE PROCLAIMS A RIGHT TO CONSCRIPT PRIVATE
BUSINESSES TO DO HIS BIDDING, EVEN WHEN CONGRESS HAS NOWHERE AUTHORIZED
SUCH ACTION.

To be sure, the idea that insurance
companies will provide services free is mere pretense. And it does
nothing to cure the violation of First Amendment religious freedom.
By entering into contracts with insurance companies to provide health
insurance for employees or students, religious employers trigger the required coverage of
services they oppose as a
matter of faith. And insurance
companies will simply pass the costs right back to the objecting
religious organizations in the form of higher premiums. It's a shell
game. For the employers, the only legal alternative is to pay heavy
fines.

But while the Obama shuffle is
a ruse and a violation of the First Amendment, it is also a flagrant violation of Youngstown. A president may not
simply decree that private companies be run in conformity with
the president's preferred policies and politics. Just as Truman could
not lawfully seize steel mills and order a wage hike, OBAMA CANNOT COMMAND insurance
companies to provide a "free"
benefit IF CONGRESS HAS NOT CONFERRED
SUCH AUTHORITY. Obarna's contemplated CONSCRIPTION - which he won't turn
into an executive order until after
the election - is an obvious and
OUTRAGEOUS ABUSE of presidential power.

Recently, the professor-president lectured the Supreme Court that it
would be "judicial activism" to hold any
part of his health care program unconstitutional.
As Youngstown demonstrates,
however, the Court sometimes must exercise
the duty to strike down
actions of Congress or the president that
exceed their constitutional powers. By Obama's definition, Youngstown was judicial activism
because it limited presidential power to seize an industry. But as Youngstown made clear, when political leaders MAKE UP powers NOT
in the Constitution, it is the Court's constitutional duty to rein them
in.
[Emphasis added].

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Michael Stokes Paulsen is
distinguished university chair and professor of law at the University
of St. Thomas.